I dissent. In Re Baer, 147 N. Y. 353, 41 N. E. 702,, the general rule is thus stated:
“Where final division and distribution is to be made among a class, the benefits of the will must be confined to those persons who come within the appropriate category at the date when the distribution or division is directed to be made. In such cases the gift is contingent upon survivorship, and, if it vests at all before the date of distribution, it is subject to be divested by the ■death before that time of a person presumptively entitled to share in the distribution. While this rule is sometimes made to yield to indications of a contrary intent in the will, yet. it may be said to be a general rule."
The question, therefore, presented is whether, considering the language of the will, there was anything to indicate a contrary indention upon the part of the testator so as to prevent the application of this general rule. It is conceded by the presiding justice in his opinion that “the enjoyment in possession of the trust fund which is provided for in the will relates to the time of the termination of the intermediate estates,” and that, were it not for indications of a contrary intent, this would leave the construction to be governed by the general rule. He bases, however, a contrary intent upon the language in the will referring to the class who are ■to take as relatives “who would be entitled to his personal property under the statute of distributions of the state of New York in ■case of his dying intestate without leaving a widow, or any child, ■or any representative of a child”; and from this it is argued that ■the testator “had in mind a class which would be in existence at the time of his death, and not a class which would be in existence at the death of his child, his wife being already deceased.” It seems •to me that neither this nor the other language employed by the testator is open to such a construction. Thus, with respect to the phrase quoted, this was merely intended as an expression on the legal effect of the statute, and was not intended to identify the class *733of persons, who were to take. If any special significance is to be ascribed to these words, it was to emphasize his intention to exclude from all participation in this fund any one deriving interest through his wife and daughter.
In Delaney v. McCormack, 88 N. Y. 174, the testator devised all his real estate to his son James for life, and, if he married, and had issue, then in fee; and providing further that, if James died without lawful issue, the executors should “sell said real estate, and distribute the proceeds thereof amongst" my next of kin as personal estate, according to the laws of the state of Hew York for the distribution of intestate personal estate.” James having died without issue, the question there, as here, was as- to which set of claimants were entitled to the legacies, it being there urged, as here, that the next of kin of .the testator, at his death, took vested interests in a legacy payable in the future. As therein said:
“But there is no gift to the next of kin, and no language importing such gift, except in the direction to convert the real estate into money, and then make distribution; and in such case the rule is settled that time is annexed to the substance of the gift, and the vesting is postponed. Much more is that true where the gift is only to vest upon the happening of a future contingency, until the occurrence of which it is uncertain whether a gift will be made at all. Here a future condition or contingency attached to the substance of the gift. It was conditioned upon the death of James without having had lawful issue, so that the vesting was plainly postponed and the gift was future. There is the further fact that at the death of James the land was to be converted into personalty, and be distributed as such, and the very subject of the gift was not lo come into existence until the prescribed contingency.”
Here also it appears that the gift in the present amount did not come into existence until the testator’s daughter had attained the age of 30 years. It is not to be severed from the testator’s general estate immediately upon his death, but comes only into existence in the event of the daughter’s attaining the age of 30 years. The fund, moreover, was to remain vested in the trustee during the lives of the testator’s wife and daughter. If the latter left issue, it would be distributable to such issue. Only in case she died without issue would it be distributable to the testator’s relatives. But the relatives could not be ascertained until both wife and daughter were deceased. If the daughter, without issue, predeceased her mother, the trust would continue for the latter’s life, and upon her death the individuals constituting the class would be determined. If the daughter survived her mother, and died without issue (an happened), the individual relatives would be determined on the daughter’s death. I think, therefore, that as both the substance of the gift and the individual legatees were contingent, it cannot be held that the relatives living at the death of the testator took either a vested or any interest at that time in the legacy. My conclusion is that the fair construction of this will is that the “relatives” therein mentioned are those answering to the description of next of kin of the testator at the termination of the life estate. Such a construction upholds the general rule, which, if it is to be of any value, should not be disregarded, or its force destroyed, by assuming a contrary intention upon the part of the testator, *734■when, as in this case, by the language of the will, Such intention is neither clearly expressed nor fairly to be implied. I agree, therefore, with the learned judge at special term, ayd think that the judgment should be affirmed.
WILLIAMS, J., concurs.